Newton v. Superior Court of California, In and For Alameda County

• Decision Date: 03 November 1986
• Docket Number: No. 85-1747,85-1747
• Citation: 803 F.2d 1051
• Parties: Huey P. NEWTON, Petitioner-Appellant, v. SUPERIOR COURT OF CALIFORNIA, In and For the COUNTY OF ALAMEDA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1051

803 F.2d 1051

Huey P. NEWTON, Petitioner-Appellant, v. SUPERIOR COURT OF CALIFORNIA, In and For the COUNTY OF ALAMEDA, Respondent-Appellee.

No. 85-1747.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1986.

Decided Nov. 3, 1986.

Fred J. Heistand, Sacramento, Cal., for petitioner-appellant.

Clifford K. Thompson, Jr., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, ALARCON and BEEZER, Circuit Judges.

ALARCON, Circuit Judge:

Petitioner/appellant Huey P. Newton, a California prisoner convicted in 1978 of possessing a concealable firearm as a felon in violation of Cal.Penal Code Sec. 12021(a) (West Supp.1986), appeals from the district court's denial of his petition for a writ of habeas corpus. He contends that (1) the respondent/appellee Superior Court of California for the County of Alameda (hereinafter the state trial court) unconstitutionally failed to give res judicata effect to a 1971 order striking the sentence enhancing allegation of his prior felony conviction in 1964, (2) the jury convicted him without evidence of scienter, (3) the state prosecutor's failure to appeal the 1971 order striking the allegations of the 1964 conviction led him to believe that he no longer was a convicted felon, and (4) the state trial court denied him due process by relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) in determining that no constitutional error occurred when his motion to waive counsel was granted in his 1964 trial. We disagree and affirm.

PERTINENT FACTS AND PROCEDURAL HISTORY

In 1964, Newton was convicted in the state trial court of assault with a deadly weapon, a felony, under Cal.Penal Code Sec. 245(a) (West Supp.1986). He waived his right to counsel and represented himself during trial. The conviction was affirmed in 1965 by the California Court of Appeal. The California Supreme Court denied Newton's petition for hearing.

In 1967, Newton was charged with three felonies in the state court arising out of the fatal shooting of an Oakland Police Officer. The accusatory pleading also contained an allegation that Newton had suffered a felony conviction in 1964. The prior conviction was alleged solely for the purpose of enhancing the punishment in the event that Newton was convicted of the substantive charges.

Before trial, Newton moved to strike the allegation of the 1964 felony conviction claiming it was invalid on the ground that his sixth amendment right to counsel had been violated because the record showed an ineffective waiver of counsel. The state trial court denied the motion to strike without a hearing. Newton was convicted of voluntary manslaughter. The California Court of Appeal reversed the judgment of conviction and remanded for a new trial. The reviewing court held that it was error to deny the motion to strike without a hearing. People v. Newton, 8 Cal.App.3d 359, 87 Cal.Rptr. 394 (1970).

Prior to the second trial on the 1967 charges, Newton renewed his motion to strike the sentence enhancing allegations concerning his 1964 felony conviction. Judge Harold Hove denied the motion after a hearing. This trial ended in a mistrial because the jury was unable to agree on a verdict.

Before the commencement of the third trial, Newton again moved to strike the prior felony conviction allegation. On November 2, 1971, Judge Lyle Cook, the state trial judge assigned to preside over the third trial, granted Newton's motion in a written order. In declaring that "the defendant may have waived his right to counsel at that time [1964] without an intelligent conception of the consequences of his act," Judge Cook gave retroactive application to the 1967 decision of the California Supreme Court in People v. Carter, 66 Cal.2d 666, 427 P.2d 214, 58 Cal.Rptr. 614 (1967). Judge Cook noted that the California Supreme Court "established stricter standards for the trial court inquiry into the defendant's ability to defend himself and his understanding of the consequences of a waiver of counsel" than were thought to be necessary in 1964. Judge Cook concluded that "[i]n light of these later decisions which must now be followed ... the charge of prior conviction must be striken from the indictment."

The jury in the third trial was unable to agree upon a verdict. The court declared a mistrial. Subsequently the substantive charges were dismissed and Newton was not retried.

The events culminating in the charges and convictions from which this action arose occurred in 1974. Newton was accused of beating Preston Callins with a pistol. The police discovered two loaded weapons and a large amount of ammunition in Newton's apartment. One of the weapons had been used to beat Callins.

Initially, Newton was charged with assault with the use of a concealable firearm. In 1977, the district attorney in Alameda County was permitted by the state trial court to amend the complaint against Newton to charge him with two counts of violation of Cal.Penal Code Sec. 12021(a), which makes it a crime to be a felon in possession of a concealable firearm. The 1964 felony conviction was alleged as an element of these additional firearm possession charges.

In 1978, in an unrelated matter, Newton was charged in Santa Cruz County with assault and with possession of a concealable firearm by a felon in violation of Cal.Penal Code Sec. 12021(a). At the preliminary hearing on these charges, Newton made a motion to strike the prior allegation on the basis of Judge Cook's 1971 order. On July 13, 1978, the Santa Cruz magistrate dismissed the firearm possession charge on the ground that the 1964 prior felony conviction was unconstitutional.

Before trial in Alameda County on the Preston Callins matter, Newton moved to strike the allegation in the firearm possession charge that he was a felon, based on the 1964 conviction, on the ground that he had not effectively waived his right to counsel. He also claimed the 1971 order striking the prior felony conviction was res judicata barring its use in the current proceedings. The state trial court denied Newton's motion to strike. The jury was never informed of Judge Cook's 1971 order striking the sentence enhancing allegation of a prior conviction. Newton was convicted of two counts of violating section 12021(a), but not of the assault charge. The California Court of Appeal affirmed the judgment of conviction. The California Supreme Court denied Newton's petition for hearing. The United States Supreme Court denied certiorari.

Newton then filed a petition for a writ of habeas corpus in the district court. The petition was dismissed without prejudice because Newton had failed to exhaust state remedies.

Newton filed a petition for a writ of habeas corpus with the California Supreme Court. On May 6, 1982, the California Supreme Court denied the petition. Newton filed the current petition for a writ of habeas corpus in the district court. The district court denied the petition. Newton has timely appealed.

STANDARD OF REVIEW

We review de novo the denial of a petition for a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985) (citing Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 124, 88 L.Ed.2d 124 (1985) ); Roth v. United States Parole Comm'n, 724 F.2d 836, 839 (9th Cir.1984).

ANALYSIS

I. USE OF 1964 FELONY CONVICTION

Newton contends that the refusal of the state court to apply the principle of res judicata to Judge Cook's 1971 order in the 1978 criminal proceedings violated state and federal due process. We address Newton's state and federal challenges under separate headings.

A. Preclusive Effect Of The 1971 Order Under California Law

"Violations of state law, without more, do not deprive a defendant of due process." Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982) (citing La Brasca v. Misterly, 423 F.2d 708, 709 (9th Cir.), cert. denied, 400 U.S. 838, 91 S.Ct. 77, 27 L.Ed.2d 72 (1970) ); see Engle v. Isaac, 456 U.S. 107, 121 n. 21, 102 S.Ct. 1558, 1568 n. 21, 71 L.Ed.2d 783 (1982) ("We have long recognized that a 'mere error of state law' is not a denial of due process. If the contrary were true, then 'every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question.' ") (quoting Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948) (citation omitted) ). "Habeas corpus relief for an asserted violation of due process is available only when the state court's action is arbitrary or fundamentally unfair." Cooks, 660 F.2d at 739 (citing United States ex rel. Burnett v. Illinois, 619 F.2d 668, 670 (7th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980) ).

Newton claims that as a matter of state law, Judge Cook's order striking the sentence enhancing allegation of his 1964 felony conviction from the 1967 accusatory pleading terminated his status as a convicted felon. Newton argues that Judge Cook's order was final and appealable. He asserts that the failure of the state prosecutor to appeal the order striking the sentence enhancing allegation precluded the state prosecutor from alleging that Newton had been convicted of a felony as an element of the crime of possession of a concealable firearm by a felon.

Under California law, any issue necessarily decided and litigated by the final determination on the merits of an issue in a criminal action is conclusive in a subsequent action between the same parties. People v. Sims, 32 Cal.3d 468, 477, 651 P.2d 321, 326, 186 Cal.Rptr. 77, 82 (1982). In criminal matters, the final determination on the merits need not be a judgment; the doctrine of res judicata has been applied in California to orders affecting substantial rights which have been fully...